June 28, 2007

Many white students will continue to experience their black brethren at some remove, as maids, servants, car-parkers, janitors and the like.

George W. Bush‘s legacy won’t be his Presidential Libary. It will be the Supreme Court he left us with, thanks to the chief justice with whom he first strolled backwards into history two years ago. Roberts says the schools “worked backward” to achieve racial balance? Along with the Dong v. Bong decision the other day, the Roberts Court has got the whole country marching in back formation.

Today’s opinion, representing a 5-4 decision that truly marks the start of the Roberts Era, smacks of certainty about everything except one particular word: diversity. This is what Roberts wrote:

The schools worked backward to achieve a particular type of racial balance, rather than working forward from some demonstration of the level of diversity that provides the purported benefits.

And that attempt to gain the “purported benefits” of diversity “is a fatal flaw,” he wrote.

In Brown v. Board of Education, 347 U. S. 483, the Court held that segregation deprived black children of equal educational opportunities regardless of whether school facilities and other tangible factors were equal, because the classification and separation themselves denoted inferiority.

It was not the inequality of the facilities but the fact of legally separating children based on race on which the Court relied to find a constitutional violation in that case.

The districts here invoke the ultimate goal of those who filed Brown and subsequent cases to support their argument, but the argument of the plaintiff in Brown was that the Equal Protection Clause “prevents states from according differential treatment to American children on the basis of their color or race,” and that view prevailed — this Court ruled in its remedial opinion that Brown required school districts “to achieve a system of determining admission to the public schools on a nonracial basis.”

Affirmative action for white people is still the law of the land. Whew.

The “differential treatment” this nitwit judge talks about was the clear advantage that white people got just by the color of their skin. The problem at the time of Brown was not that black people wanted things decided on a racial basis but that white people were already getting breaks on a racial basis. The goal was a “nonracial basis.” Our laws provide for redressing bad situations. And redressing that is what Brown was all about — an attempt to restore balance, or actually create an equal playing field for the first time in our history. Considering that white flight led to white-only schools, thanks in part to the housing segregation reinforced by racist deed restrictions and covenants, not to mention redlining by banks and racial steering by real estate brokers, how else could this country redress the built-in inequality of opportunity for black people?

Roberts talks of “history.” Maybe history will remember today’s decision by a more apt name: White v. Black.